Broughal v Walsh Brothers Builders Ltd & Anor

A judge who has refused permission to appeal on the papers is not thereby disqualified from hearing the substantive appeal. The fair-minded and informed observer must consider the procedural context, including the opportunity for oral argument and the judge’s professional duty and capacity to reconsider an earlier view. Recusal is required only where the judge’s earlier decision or conduct indicates a fixed and concluded view, or an unwillingness to engage with further argument. Administrative convenience cannot justify compromising impartiality, but its irrelevance does not alter the substantive apparent-bias test.

The claimant appealed from an order of HH Judge Baucher in the County Court at Central London, which had dismissed his appeal against a refusal to grant relief from sanctions and an order assessing his personal-injury damages claim at nil. Judge Baucher had earlier refused permission to appeal on the papers, but permission was later granted at an oral hearing before HH Judge Saggerson. Judge Baucher then refused to recuse herself and dismissed the substantive appeal. The sole issue before the Court of Appeal was whether her earlier refusal of permission created an appearance of bias requiring the appeal to be reheard by another judge.

1. Appeal dismissed unanimously. The judge’s prior refusal of permission on the papers did not, without more, create a real possibility of apparent bias.
2. The governing test is objective. The question is whether the fair-minded and informed observer, knowing the relevant facts, would conclude that there was a real possibility that the judge might not bring an impartial mind to the appeal. The assessment is fact-sensitive and must balance the risk of a predetermined outcome against the judge’s oath, training and professional objectivity.
3. Sengupta v Holmes [2002] EWCA Civ 1104, approved and followed in Dwr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 536, establishes that prior consideration of a permission application does not disqualify a judge from hearing the substantive appeal unless the judge expressed views indicating to a fair-minded observer that a concluded view had been reached and further argument would not be entertained. Such cases are likely to be rare.
4. The permission test under the Civil Procedure Rules requires the judge to decide whether the appeal has a real prospect of success, but that conclusion does not itself show that the judge is closed to persuasion after oral argument. The possibility that oral submissions may change the judge’s view is an ordinary feature of litigation.
5. Administrative convenience is irrelevant to the right to an impartial tribunal. Nevertheless, Judge Baucher had done no more than apply the permission test in her paper order. Nothing in that order suggested hostility, a closed mind or an unwillingness to reconsider the matter. The fair-minded and informed observer would therefore have apprehended no real danger of bias.

• Court of Appeal (Civil Division): [2018] EWCA Civ 1610 . Appeal dismissed and the order of HH Judge Baucher upheld.
• County Court at Central London: HH Judge Baucher dismissed the claimant’s appeal against Deputy District Judge Ghallingham’s refusal of relief from sanctions and assessment of the damages claim at nil.
• County Court at Central London: Deputy District Judge Ghallingham refused relief from sanctions and assessed the claim for damages at nil.